A criminal act involves a public wrong and a moral wrong.
The public wrong is the act or conduct prohibited by criminal law, referred to as ‘actus reus’ -guilty act in Latin-. The ‘actus reus’ in itself is not sufficient to impose criminal liability, as it must be accompanied by the ‘mens rea’. The latter concerns the state of mind of the defendant. A guilty mind means that the person is sufficiently aware of what they are doing and of the consequences it may have. It is the attribution of criminal responsibility. A person is not criminally liable unless the requisite state of mind coincides with the prohibited ‘actus reus’. (Maher, 2005)In England and Wales, the minimum age of criminal responsibility is set at 10 years old (Wishart, 2013). The law considers that, at that age, children are capable of accepting criminal responsibility for their behaviour because they have ‘discretion’, meaning they have «the power or right to decide and act according to one’s own judgment» (Merriam-Webster).
This age was set by the section 44(1) of the Children and Young Persons Act of 1969 (Wishart, 2013). Before this act, the age of criminal responsibility was set at 8 (Children Young Person Act, 1933). In the 1980s and the 1990s, numerous laws and amendments were adopted regarding the rights of children. Among them: the Child Care Act in 1980 and 1989. The first one states that children cannot be held for more than 72 hours without the authorization of the Juvenile Court and the latter focused on a better treatment of children as witnesses in criminal proceedings (Clinton, 2011).
In 1998, the Human Rights Act was adopted and a year later the Youth Justice and Criminal Evidence Act amended the proceedings of children’s trials. One of the main improvements that this law brought was that children are now judged in different settings than adults and that criminal proceedings involving children take place behind closed doors. One of the major Acts regarding children and the judicial system is the Crime and Disorder Act of 1998. Section 34 of this Act suppressed the presumption of ‘doli incapax’, which meant «the rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence» (Criminal and Disorder Act, section 34). Before this law, although any child under 10 was automatically judged incapable of committing an offence, there still was the presumption of ‘doli incapax’ for children aged 10 to 14 years old.
Criminal law therefore now treats children aged 10 to 13 in the same way as those aged 14 or over. This presumption was first abolished by the Jurisprudence in 1994 in C. v. Director of Public Prosection. The Judge of this case decided that the doctrine of ‘doli incapax’ was no longer part of the law.
The decision of the case was reversed in appeal because the House of Lords considered that abolishing this doctrine was a modification too important and, as such, needed to be considered by the Parliament and not the judicial power (Smith, 1994). The Parliament, then, reviewed this doctrine and abolished it through the section 34 of the Crime and Disorder Act of 1998.